The Canada Border Services Agency (CBSA) is responsible for enforcing the Immigration and Refugee Protection Act (IRPA), which governs the admissibility of foreign nationals and permanent residents to Canada. One of the Agency’s key enforcement functions involves managing the access of people to Canada by identifying persons who may not be allowed to enter or remain in the country. The Act provides categories of inadmissibility which are used by officers to determine whether foreign nationals or permanent residents are able to enter and/or remain in Canada. One of the provisions contained in the criminality categoryFootnote 1 of the Act authorizes officers to prepare a report alleging criminal inadmissibility against a foreign national where the commission of certain prescribed offences occurs upon entry to Canada. If satisfied that such a report is well founded, the Immigration Division of the Immigration and Refugee Board may determine that the foreign national is inadmissible to Canada. Furthermore, the Immigration and Refugee Protection Regulations (IRPR) specify factors that must be considered when determining whether or not a person is a danger to the public for the purpose of immigration detention.

In the 2015 Speech from the Throne, the Government of Canada committed to legalize, regulate and restrict access to cannabis and controlling and regulating its production, distribution and sale. Following through with this commitment, on April 13, 2017, the Government introduced Bill C-45, the Cannabis Act(short title). Prior to introducing the proposed Cannabis Act, the Government of Canada established a Task Force on Cannabis Legalization and Regulation in June 2016 and provided them with a mandate to consult and provide advice to the Government on the design of a new legislative and regulatory framework for legal access to cannabis. The Task Force provided its findingsFootnote 2 through a report that was delivered to the Government on December 13, 2016. The report included a recommendation that the federal government implement clear, proportional and enforceable penalties that seek to limit criminal prosecution for less-serious offences, while maintaining criminal offence status for the following: illicit production, trafficking, possession for the purpose of trafficking, possession for the purposes of export, and importing and exporting.

The regulatory amendments identified in this proposal provide continuity with the current scheme regarding inadmissibility associated with committing a criminal offence upon entry as well as factors for detention. The proposed cannabis legalization framework would move the criminal offences associated with cannabis (e.g. production, trafficking, importing and exporting) out of the Controlled Drugs and Substances Act (CDSA) and into the proposed Cannabis Act. As a result, the CBSA, in consultation with Immigration, Refugee and Citizenship Canada, is proposing two minor but important regulatory amendments to the IRPR that are necessary to maintain the current transborder framework, and are required to be in place when the Cannabis Act comes into force.

This consultation notice offers the public and stakeholders an opportunity to provide feedback on measures that are under consideration. The proposed regulatory amendments are planned to come into force in alignment with the coming into force of the proposed Cannabis Act. Below is a summary of the measures that are being considered.

Measures Under Consideration

1. Amend the Regulations by adding the Cannabis Act to the list of Prescribed Acts relating persons found committing, on entering Canada, indictable offences. The Cannabis Act would effectively replace the CDSA in respect to the cannabis related offences that result in inadmissibility for committing an offence upon entry to Canada.

The proposed amendment would add the Cannabis Act to the list of prescribed Acts of Parliament to be considered when assessing inadmissibility pursuant to paragraph 36(2)(d) of the IRPA. This amendment will ensure that, if and when the Cannabis Act comes into force, foreign nationals who commit serious cannabis-related offences upon entry to Canada, will continue to be found inadmissible pursuant to paragraph 36(2)(d) of the IRPA.

2. Amend the Regulations to make reference to the Cannabis Act and its proposed cannabis offences in the section of the IRPR that sets out the considerations in assessing whether a person is a danger to the public.

The CBSA is responsible for the arrest and detention of foreign nationals and permanent residents where, among other reasons, there are reasonable grounds to believe the persons are inadmissible to Canada and a danger to the public or considered a flight risk, and (in the case of foreign nationals only) where an officer is not satisfied of their identity. The factors to be considered when assessing whether a person is a danger to public are found in the IRPR and currently include certain criminal offences that relate to trafficking, importing and exporting, and production under the CDSA.

The proposed regulatory amendment would maintain the current scope of factors related to immigration detention factors with respect to cannabis-related offences insofar as the ground of danger to the public is concerned, as section 246 of the IRPR also specifically identifies the CDSA. The Cannabis Act would be added to the current list of Acts in section 19 of the IRPR and serious criminal offences under the Cannabis Act would be added to the current list in section 246 of the IRPR.

Comments or Question

Should you have any comments or questions on the planned regulatory amendments, you are invited to provide feedback to: